AN ACT Relating to Patient Safety in Long-Term-Care Settings and Making an Appropriation

UNOFFICIAL COPY AS OF 12/09/1812 REG. SESS.12 RS HB 250/GA

AN ACT relating to patient safety in long-term-care settings and making an appropriation therefor.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

Section 1. KRS 216.785 is amended to read as follows:

As used in KRS 216.785 to 216.793, unless the context otherwise requires:

(1)"Applicant" means an individual applying to be an employee at a long-term-care facility or provider, as defined in subsection (9) of this section;

(2)"Cabinet" means the Cabinet for Health and Family Services;

(3)"Civil applicant fingerprints" means fingerprints submitted to the Department of Kentucky State Police for a criminal background check pursuant to Section 4 of this Act;

(4)"Continuous employment assessment" means a process for ongoing criminal background and registry checks after an initial background check is performed;

(5)"Criminal background check" means a national and state fingerprint-supported criminal history background check performed by the Department of Kentucky State Police and the Federal Bureau of Investigation;

(6)"Disqualifying offense" means:

(a)A conviction of, or a plea of guilty, an Alford plea, or a plea of nolo contendere to:

1.A misdemeanor offense related to abuse, neglect, or exploitation of an adult or child, or a sexual offense;

2.A criminal offense against a victim who is a minor, as defined in KRS 17.500;

3.A felony offense under:

a.KRS Chapter 209;

b.KRS Chapter 218A;

c.KRS 507.020;

d.KRS 507.030;

e.KRS 507.040;

f.KRS Chapter 508;

g.KRS Chapter 509;

h.KRS Chapter 510;

i.KRS Chapter 511;

j.KRS Chapter 513;

k.KRS 514.030;

l.KRS Chapter 515;

m.KRS 529.100;

n.KRS 529.110;

o.KRS Chapter 530; and

p.KRS Chapter 531;

4.A criminal statute of the United States or of another state similar to an offense specified in this paragraph;

5.A violation of the uniform code of military justice or military regulation similar to an offense specified in this paragraph, which has caused the person to be discharged from the Armed Forces of the United States; or

6.Any crime described in 42 U.S.C. sec. 1320a-7;

(b)A substantiated finding of neglect, abuse, or misappropriation of property by a state or federal agency pursuant to an investigation conducted in accordance with 42 U.S.C. sec. 1395i-3 or 1396r;

(c)Registration as a sex offender under federal law or under the law of any state; or

(d)Being listed on a registry as defined in this section;

(7)"Employee" means any individual who is hired by a long-term-care facility or provider through employment or through a contract with such facility or provider, including but not limited to nurses; housekeepers; maintenance personnel; dieticians; pharmacists; administrative staff; any staff person who has access to the personal belongings or funds of a patient, resident, or client; and any volunteer who has duties that are equivalent to the duties of an employee providing services. "Employee" does not include an individual who independently contracts with the long-term-care facility or provider to provide utility, construction, communications, or other services if the contracted services are not directly related to the provision of services to a resident, patient, or client of the facility or provider;

(8)"Inspector general" means the Office of Inspector General of the Cabinet for Health and Family Services;

(9)"Long-term-care facility or provider" means:

(a)Long-term-care facility as defined in KRS 216.510;

(b)Nursing pool as defined in this section providing staff to a long-term-care facility;

(c)Adult day health care program as defined in KRS 216B.0441;

(d)An assisted living-community as defined in KRS 194A.700;

(e)A home health agency as defined in KRS 216.935;

(f)A provider of hospice care as defined in 42 U.S.C. sec. 1395x(dd)(1) and licensed pursuant to KRS Chapter 216B;

(g)A long-term-care hospital as defined in 42 U.S.C. sec. 1395ww(d)(1)(B)(iv);

(h)A personal services agency as defined in KRS 216.710;

(i)Providers of home and community-based services authorized under KRS Chapter 205; or

(j)Any other provider as specified by the cabinet by administrative regulation promulgated pursuant to Section 2 of this Act;

(10)"Nursing pool" means any person, firm, corporation, partnership, or association engaged for hire in the business of providing or procuring temporary employment in or with a long-term-care facility or provider for medical personnel, including but not limited to nurses, nursing assistants, nursing aides, and orderlies;

(11)"Registry" means the Nurse Aide Abuse Registry and any other registry useful for the administration of the National and State Background Check Program as specified by administrative regulation; and

(12)"Senior citizen" means a person sixty (60) years of age or older["Assisted-living community" shall have the same meaning as in KRS 194A.700.

(2)"Crime" means a conviction of or a plea of guilty to a felony offense related to theft; abuse or sale of illegal drugs; abuse, neglect, or exploitation of an adult; or the commission of a sex crime. Conviction of or a plea of guilty to an offense committed outside the Commonwealth of Kentucky is a crime if the offense would have been a felony in Kentucky if committed in Kentucky.

(3)"Direct service" means personal or group interaction between the employee and the nursing facility resident or the senior citizen.

(4)"Nursing pool" means any person, firm, corporation, partnership, or association engaged for hire in the business of providing or procuring temporary employment in nursing facilities for medical personnel including, but not limited to, nurses, nursing assistants, nurses' aides, and orderlies.

(5)"Senior citizen" means a person sixty (60) years of age or older].

SECTION 2. A NEW SECTION OF KRS 216.785 TO 216.793 IS CREATED TO READ AS FOLLOWS:

(1)(a)The cabinet shall establish a National and State Background Check Program, within available appropriations or funding, to facilitate the performance of registry and criminal background checks of prospective employees of long-term-care facilities and providers.

(b)A registry check of an applicant shall be required prior to a criminal background check and shall be initiated by a long-term-care facility or provider. The registry check shall be performed by the National and State Background Check Program through a query of the Nurse Aide Abuse Registry and any other registry identified in administrative regulations promulgated pursuant to subsection (5) of this section.

(c)If applicable to the applicant, a query of available information maintained by the Kentucky Board of Medical Licensure, Kentucky Board of Nursing, or Kentucky Board of Physical Therapy shall be conducted prior to a criminal background check to validate that the individual’s professional license is in good standing.

(d)Nothing in this section shall be construed to limit the responsibility or ability of an employer to screen applicants through additional methods.

(2)(a)The cabinet shall implement the National and State Background Check Program in phases between October 1, 2012, and April 1, 2013, by category of long-term-care facility or provider.

(b)An implementation schedule shall be incorporated by reference in administrative regulations promulgated pursuant to subsection (5) of this section.

(c)The cabinet shall provide notification to each long-term-care facility or provider no less than sixty (60) days prior to date the facility or provider is required to participate in the National and State Background Check Program.

(3)Each nursing facility, nursing pool providing staff to a nursing facility, assisted-living community, long-term-care facility owned, managed, or operated by the Department for Mental Health and Mental Retardation, and personal services agency shall continue to request all conviction information from the Justice and Public Safety Cabinet for any applicant for employment until the date that the facility or provider is phased into National and State Background Check Program participation.

(4)The fee established for the national and state background check pursuant to subsection (6)(e) of this section shall include:

(a)An amount charged by the cabinet that does not exceed the actual cost of facilitating background checks to be paid into the State Treasury and credited to the National and State Background Check Program fund created in Section 8 of this Act; and

(b)An amount that shall be remitted by the cabinet to the appropriate state or federal law enforcement agency for the actual cost of processing criminal background checks and continuous employment assessments pursuant to subsection (2) of Section 3 of this Act.

(5)Until May 19, 2014, or the extent that National and State Background Check Program grant moneys or other funding is available, the cabinet shall use federal grant funds from the Centers for Medicare and Medicaid Services to cover the cabinet's portion of the fee and the federal law enforcement portion of the fee remitted by the cabinet pursuant to subsection (4) of this section on behalf of long-term-care facilities or providers. The cabinet's portion of the fee that is covered with funding under this subsection shall be credited to the National and State Background Check Program fund created in Section 8 of this Act.

(6)The cabinet shall promulgate administrative regulations pursuant to KRS Chapter 13A to implement the requirements of KRS 216.785 to 216.793 that include but are not limited to the following:

(a)Registries necessary for the administration of the National and State Background Check Program, which shall include the abuse and neglect registries of the Commonwealth of Kentucky and may include registries of another state if an applicant previously resided in that state;

(b)Procedures to provide appropriate privacy and security safeguards in the review of the results from criminal background checks and registry checks;

(c)A schedule of dates for compliance by each type of long term-care facility or provider;

(d)Requirements for monitoring compliance with the National and State Background Check Program by long-term-care facilities or providers, including the imposition of fines for violating Section 4, 5, or 6 of this Act; and

(e)Fees to be collected by the cabinet for national and state background checks that shall be subject to subsections (4) and (5) of this section.

SECTION 3. A NEW SECTION OF KRS 216.785 TO 216.793 IS CREATED TO READ AS FOLLOWS:

(1)(a)The cabinet and the Justice and Public Safety Cabinet shall collaborate on the development and implementation of a mechanism for continuous employment assessment that occurs following an employee’s initial criminal background check.

(b)The cabinet shall collaborate with any federal, state, or local government entity on the development and implementation of a mechanism for continuous employment assessment that occurs following an employee’s initial registry check.

(2)The Department of Kentucky State Police and the Federal Bureau of Investigation may charge for the actual cost of processing criminal background checks and continuous employment assessments, which shall be included in the fee established pursuant to subsections (4) and (6)(e) of Section 2 of this Act, and may charge a fee pursuant to subsection (2) of Section 14 of this Act.

(3)The Department of Kentucky State Police shall:

(a)Promulgate administrative regulations pursuant to KRS Chapter 13A to specify a period of time to retain civil applicant fingerprints;

(b)Furnish all arrest and conviction information regarding each applicant to the inspector general; and

(c)Immediately inform the inspector general if an employee is arrested for or convicted of a crime following his or her initial criminal background check, or if the fingerprints from the arrest or commitment to a correctional or detention facility match the employee’s civil applicant fingerprints on file with the Department of Kentucky State Police.

(4)Upon receipt of notice from the Department of Kentucky State Police of a conviction against an employee of a long-term-care facility or provider that occurs subsequent to the employee’s initial criminal background check, the inspector general shall immediately inform the facility or provider if it has made a determination that the conviction is a disqualifying offense.

(5)The inspector general shall not include in its disqualifying offense notice to the long-term-care facility or provider, or the applicant or employee, the specific criminal offenses that constituted the disqualifying offense, or any other information prohibited by state or federal statutes, regulations, or guidelines.

SECTION 4. A NEW SECTION OF KRS 216.785 TO 216.793 IS CREATED TO READ AS FOLLOWS:

(1)An applicant seeking employment with a long-term-care facility or provider shall consent to a national and state background check that includes a registry check, a check of information maintained by a professional licensure board pursuant to subsection (1) of Section 2 of this Act, if applicable, and a criminal background check.

(2)Except as provided in subsection (3) of this section and subsection (2) of Section 5 of this Act, a long-term-care facility or provider shall not employ, contract with, or otherwise permit to work as an employee an individual required to submit to a registry check and criminal background check if:

(a)The individual is listed on a registry;

(b)The individual's professional license is not in good standing, if applicable; or

(c)The facility or provider receives notice from the cabinet that the individual has been determined to have a disqualifying offense.

(3)If an applicant is not found on a registry and the applicant's license, if applicable, has been validated pursuant to subsection (1) of Section 2 of this Act, a long-term-care facility or provider may hire an applicant for a provisional period of employment pending the completion of the criminal background check, during which time that employee shall be subject to direct on-site supervision.

(4)An applicant, or an employee subject to continuous employment assessment, who receives notice of a disqualifying offense may challenge the accuracy of the cabinet’s determination regarding a disqualifying offense by submitting a written request to the cabinet for an informal review of the cabinet’s determination or file an appeal under KRS Chapter 13B within five (5) business days of receipt of notice of the disqualifying offense. An applicant or employee may appeal the results of an informal review.

(5)If an applicant or employee wishes to obtain information concerning the disqualifying offense or appeal the accuracy of a criminal background check, the cabinet shall refer the individual to the appropriate state or federal law enforcement agency.

(6)If an applicant or employee challenges the finding that he or she is the true subject of the results from a registry check, the cabinet shall refer the individual to the agency responsible for maintaining the registry.

SECTION 5. A NEW SECTION OF KRS 216.785 TO 216.793 IS CREATED TO READ AS FOLLOWS:

(1)Upon notification from the cabinet that an employee has a disqualifying offense, a state-owned or operated long-term-care facility shall:

(a)Initiate disciplinary action under KRS 18A.095; and

(b)Provide a written attestation statement to the cabinet affirming the employee’s dismissal within three (3) business days if the termination decision is upheld pursuant to KRS 18A.095.

(2)Upon notification from the cabinet that an employee has a disqualifying offense, a long-term-care facility or provider that is not state-owned or operated:

(a)Shall terminate the employee no later than six (6) business days after receipt of notice of the disqualifying offense if the employee has not requested an informal review or an appeal of the finding pursuant to subsections (4) to (6) of Section 4 of this Act. The facility or provider shall submit a written attestation statement to the cabinet affirming the individual’s dismissal within three (3) business days of termination; or

(b)May retain the employee pending resolution of an employee's appeal if the employee submitted a request for independent review or appeal in accordance with the following:

1.The employee shall be subject to direct, on-site supervision, or reassigned to duties that do not involve one-on-one contact with a resident, patient, or client of the facility or provider; and

2.The employee shall be informed that termination shall be immediate if the final order on the employee’s appeal upholds the cabinet’s determination regarding a disqualifying offense, or the employee does not prevail in an appeal requested pursuant to subsection (4) of Section 4 of this Act.

(c)If an employee is retained under this subsection and the final order upholds the accuracy of the cabinet’s determination regarding a disqualifying offense or the employee does not prevail in an appeal requested pursuant to subsection (4) of Section 4 this Act, the facility or provider shall immediately terminate the individual and provide a written attestation statement to the cabinet affirming the individual’s dismissal within three (3) business days of termination.

(3)The cabinet shall issue a fine to a long-term-care facility or provider in the amount of five hundred dollars ($500) for a violation of subsection (2) of this section. Each day shall constitute a separate offense.

(4)All fines collected pursuant this section shall be credited to the National and State Background Check Program fund created under Section 8 of this Act.

SECTION 6. A NEW SECTION OF KRS 216.785 TO 216.793 IS CREATED TO READ AS FOLLOWS:

(1)A disqualifying offense shall be eligible for consideration of rehabilitation under an independent review process.

(2)An applicant may submit a written request for a rehabilitation review to the cabinet no later than fourteen (14) calendar days from the date of the notice of the cabinet’s determination regarding a disqualifying offense.

(3)The request for a rehabilitation review shall include the following information:

(a)A written explanation of each disqualifying offense, including:

1.A description of the events related to the offense;

2.The number of years since the occurrence of the offense;

3.The identification of individuals involved in the offense;

4.The age of the offender at the time of the offense; and

5.Any other circumstances surrounding the offense;

(b)Official documentation showing that all fines have been paid or documentation showing adherence to a payment schedule, if applicable;

(c)The date probation or parole was satisfactorily completed, if applicable; and

(d)Employment and character references, including any other evidence demonstrating the ability of the individual to perform the employment responsibilities and duties competently.

(4)A rehabilitation review shall be conducted by a committee of three (3) or more employees of the cabinet, each of whom was not responsible for determining that the individual has a disqualifying offense.

(5)The committee shall consider the information required under subsection (3) of this section, and shall also consider mitigating circumstances that may include but are not limited to:

(a)The amount of time that has elapsed since committing the disqualifying offense, which shall be no less than seven (7) years from the date of the disqualifying offense;

(b)The lack of a relationship between the disqualifying offense and the position for which the individual has applied; and

(c)Evidence that the applicant has pursued or achieved rehabilitation with regard to the disqualifying offense.

The committee shall make a recommendation to the secretary or designee, who shall be responsible for making the final decision.

(6)The secretary or designee may grant a waiver from the prohibition against employment of an applicant with a disqualifying offense.